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Monday, May 9, 2016

An unenforceable law is just a suggestion

Local public officials function within a legal framework specific to their respective office. Part of the structure for these rules of conduct comes from Kentucky statutes and part comes from local ordinances and procedures. Some of the statutes provide specific penalties for noncompliance, but many others are enforceable only under general penal prohibitions against official misconduct. Compelling public officials to obey the law involves a mix of both civil and criminal enforcement, with a large degree of overlap.

Chapters 514, 519 and 522 of Kentucky's Penal Code contain several misdemeanor and felony offenses applicable to official misconduct. The following is a list of the more obvious examples.

514.070 - Theft by failure to make required disposition of property.
Felony or misdemeanor depending upon the amount involved.

"A person is guilty of theft by failure to make required disposition of property received when:*** He intentionally deals with the property as his own and fails to make the required payment or disposition *** An officer or employee of the government *** presumed [t]o know any legal obligation relevant to his criminal liability under this section; and [t]o have dealt with the property as his own when: (1). He fails to account or pay upon lawful demand; or (2). An audit reveals a shortage or falsification of accounts."

519.060 - Tampering with public records.

"(1) A person is guilty of tampering with public records when:

(a) He knowingly makes a false entry in or falsely alters any public record; or
(b) Knowing he lacks the authority to do so, he intentionally destroys,
mutilates, conceals, removes, or otherwise impairs the availability of any
public records; or
(c) Knowing he lacks the authority to retain it, he intentionally refuses to
deliver up a public record in his possession upon proper request of a
public servant lawfully entitled to receive such record for examination or
other purposes.

(2) Tampering with public records is a Class D felony."

522.020 - Official misconduct in the first degree.

"(1) A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he knowingly:

(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or
(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or
(c) Violates any statute or lawfully adopted rule or regulation relating to his office.

(2) Official misconduct in the first degree is a Class A misdemeanor."

522.030 - Official misconduct in the second degree.

"(1) A public servant is guilty of official misconduct in the second degree when he knowingly:

(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or
(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or
(c) Violates any statute or lawfully adopted rule or regulation relating to his office.

(2) Official misconduct in the second degree is a Class B misdemeanor."

522.050 - Abuse of public trust.

(1) A public servant who is entrusted with public money or property by reason of holding public office or employment, exercising the functions of a public officer or employee, or participating in performing a governmental function, is guilty of abuse of public trust when:

(a) He or she obtains public money or property subject to a known legal obligation to make specified payment or other disposition, whether from the public money or property or its proceeds; and
(b) He or she intentionally deals with the public money or property as his or her own and fails to make the required payment or disposition.

(2) A public servant is presumed:

(a) To know any legal obligation relative to his or her criminal liability under this section; and
(b) To have dealt with the public money or property as his or her own when:

1. He or she fails to account upon lawful demand; or
2. An audit reveals a shortage or falsification of accounts.

(3) Abuse of public trust is:

(a) A Class D felony if the value of the public money or property is less than ten thousand dollars ($10,000);
(b) A Class C felony if the value of the public money or property is ten thousand dollars ($10,000) or more, but less than one hundred thousand dollars ($100,000); and
(c) A Class B felony if the value of the public money or property is one hundred thousand dollars ($100,000) or more.

(4) The judgment of conviction under this section shall recite that the offender is disqualified to hold any public office thereafter.
(5) Conduct serving as the basis for the conviction of a public servant under this section shall not also be used to obtain a conviction of the public servant under KRS 514.070.